Federal Lawsuit Challenges Amendment 71 as Unconstitutional

Complaint: Increased requirements for citizens to make the state ballot defy First and 14th Amendments

Denver— Attorney Ralph Ogden filed a complaint today in Federal court challenging Amendment 71 as unconstitutional. Plaintiffs in the suit include William Semple, as an individual Colorado voter; Co-operate Colorado, the nonprofit group that garnered enough signatures to place initiative #20 on the ballot as Amendment 69; ColoradoCareYes, the nonprofit issue committee that unsuccessfully campaigned for ColoradoCare’s passage in 2016; and Dan Hayes, the proponent for initiative #4 “Limit on Local Housing Growth.” Initiative #4 was approved by the Title Board and will be ready for signature collection once the Supreme Court rules on an opponent’s appeal. State Secretary of State Wayne Williams is named as the defendant.

Before Amendment 71 (A71) passed in November, to place a measure on the ballot, citizens needed to collect valid signatures of 5 percent of the registered voters who voted for secretary of state, regardless of where they lived. Because it’s easier and cost effective, most proponents collected signatures in densely populated counties, avoiding more sparsely populated rural areas. Amendment 71 has an additional requirement that signatures must include at least 2 percent of the registered voters in each of the state’s 35 senate districts, making it far more difficult and expensive to get onto the ballot.

More than 60 diverse organizations including the Denver Republican and Democratic Parties, the Libertarian Party of Colorado and Generation Latino, the AFL-CIO and Greenpeace — all opposed Amendment 71. So did several members of the state house, Congress, and leaders in local governments, as well as several local papers, including the Denver Post, the Aurora Sentinel, and the Greeley Tribune.

Citizens groups from all parts of the political spectrum also support the lawsuit, including Colorado Community Rights Network, the Independence Institute, Be the Change, Food and Water Watch, Colorado People’s Alliance, and local governments. Dennis Polhill, a senior fellow with the Independence Institute, is a scheduled speaker for Monday’s press conference. The conservative Institute has long opposed restrictions on the initiative. Fellow speaker Micah Parkin, executive director and founder of 350Colorado.org, also serves on the steering committee for the Coloradans Against Fracking coalition and the board of Colorado Rising, which works to pass ballot initiatives to restrict fracking near communities.

“Those on the left and the right are coming together to oppose this draconian amendment that infringes on the fundamental right of the initiative, which is guaranteed by the Colorado Constitution,” said Ivan Miller, executive director of the Colorado Foundation for Universal Health Care, host of Monday’s press conference. “According to the Colorado Supreme Court, the initiative stands in importance with the right to vote.”

“We need an affordable citizen’s initiative in Colorado,” said Bill Semple, one of the plaintiffs in the case and one of the petitioners that placed Amendment 69 on the ballot. “Elected officials in both parties respond to the demands of big corporations and the wealthy, not the needs of most citizens. For example, the majority of Americans support Medicare for all and yet it has been excluded from the discussion, at least until now. Leaders follow the money. The people must lead.”

Passed following a $3 million campaign funded by special interests like the oil and gas industry, A71 curbs citizen groups seeking to change Colorado law in the public interest. It also requires that 55 percent of voters vote yes to pass a measure rather than a simple majority.

All the extra requirements make it nearly impossible for any but the wealthiest to amend the state Constitution.

They also make it much more difficult for citizens and local groups to stand up to big corporations and the wealthy around issues like fracking.

Before the A71’s passage, only one-third of all attempts by citizens to make the ballot succeeded. Because it took Colorado citizens several attempts to legalize marijuana or to pass the taxpayer’s bill of rights, those measures likely could not have passed were A71 in place.

Ogden, who successfully argued over 200 appeals in state and federal courts before his semi-retirement in 2012, represented Becky Brinkman and Margaret Burd in Brinkman v. Long, the Adams County, Colorado, same-gender marriage case which resulted in a judicial declaration that Colorado’s ban on same gender marriages violated the Fourteenth Amendment. He serves on the Colorado Foundation for Universal Health Care’s Board of Directors.

A71 is unconstitutional

A71 violates both the First and the 14th Amendments to the U.S. Constitution in several ways, the complaint asserts. Colorado’s Amendment 71 (A71) would allow one senate district to nullify individuals’ signatures across the state, restrict and force core political speech, limit what voters can vote on, and make it far more expensive for citizens to participate in the political process—and those are just some of the ways it’s unconstitutional.

Proponents of A71 intended to give rural voters more of say and to make it more difficult to collect signatures, as they stated in the pre-election Colorado Blue Book published by the Colorado Legislative Council. This stated purpose to give rural voters more say in what makes the ballot gives rural voters a special status that violates the U.S. Constitution’s one person, one vote rule, which treats all voters as equal.

For example, if 2 percent of the registered voters in a district cannot be contacted, informed, and persuaded to sign a petition, then their effective “no” votes veto all “yes” votes across Colorado—even if more than 2 percent of voters in all other 34 districts sign the petition and even if the vast majority of Coloradans support the measure. A71 can essentially give the votes in one district heavier “weight” than votes in the 34 other districts combined.

The 2 percent requirement creates unconstitutional obstacles in complexity and cost to placing a citizen’s initiative on the ballot, making it nearly impossible for any but the wealthiest to amend the state Constitution.

By limiting choices at the ballot, A71 blocks the rights of Coloradans of various political backgrounds to cast their votes effectively on issues that concern them.

About the Foundation: A 501(c)(3) educational nonprofit, the Colorado Foundation for Universal Health Care works to achieve guaranteed quality health care for all for life. The Foundation champions a universal health care system, the simplest most cost-effective way to pay for health care.